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Maintenance u/s.125 discharged for wrong jurisdiction

Madras High Court

K. Mohan
vs
Balakanta Lakshmi on 13 December, 1982

Equivalent citations: 1983 CriLJ 1316

Bench: R Pandian

ORDER Ratnavel Pandian, J.

..1. This rider is destined opposite a rough sequence made’ in M. C. 806 of 1980 on a record of a II Metropolitan Magistrate, Edmore, Madras, rejecting a row of a rider postulant (respondent in M. C. 806 of 1980 — husband) that a Court next did not have a territorial office to perform an focus underneath Section 125, Cr. P.C. filed by a respondent herein (wife).

..2. It is a unequivocally hapless box wherein a rarely prepared integrate are eternally fighting with any other apparently for a reason, that they are not means to get on together amicably. It is seen from a annals that after a marriage, both a parties resided during Bangalore and that a rider postulant filed an strange petition for nullification of a matrimony before a Principal Civil Judge, Bangalore city. Be that as it may, a respondent had left Bangalore and afterward had filed an focus underneath Section 125 Cr. P.C. before a Second Metropolitan Magistrate, Edmore, Madras, claiming upkeep from a rider petitioner. In that petition she has staid in a rough that she is now staying during Madras. The respondent, on receipt of a notice from a Court of a Second Metropolitan Magistrate, Madras, had filed a opposite denying a allegations and lifting a rough objection, saying that a pronounced Court had no territorial office to perform this focus underneath Section 125 Cr. P.C. on a belligerent that a respondent is not staying within a jurisdiction, viz. in a Madras City, nonetheless on a other palm is henceforth staying with her relatives during Ambattur within a office of a Chengalpattu district and therefore a focus ought to have been presented before a Court endangered in Chengalpattu district carrying office over Ambattur area. To justify his rough objection, a postulant has filed a series of papers remarkable as Exs. R-l to R-5. No verbal justification was let in by possibly of a parties. The schooled Magistrate, watching that a tenure ‘resides’ occurring in Section 125 (1) (b) of a Cr. P.C. should be liberally construed, held, on a solitary basement of a averment in a rough of a petition that a respondent is staying during Madras, that he has got a territorial office to perform that focus and a rough conflict lifted by a postulant with courtesy to a office is to be overruled. It is as opposite this order, a benefaction rider is preferred.

..3. Though a respondent has perceived a summons, she is conjunction appearing in chairman nor appearing by any counsel. Therefore this Court has allocated Mr. A. Sasidharan, as amicus curiae to seem on interest of a respondent and to support this Court.

..4. This rider raises a doubt as to a loyal construction of a tenure ‘resides’ appearing in Section 126 (1) (b) of a Criminal P.C. Leaving detached a doubt about a respondent’s desert for maintenance, we have to establish in this box a doubt about a territorial office of a Court during Madras to perform this focus filed underneath Section 125 Cr. P.C. since a office of a Court is to be dynamic by a chateau of a parties. The answer to this doubt turns on a interpretation of Causes (a) to (c) of Section 126 (1) of a Code that delimit a jurisdictional boundary of a Court to perform a petition underneath Section 125. we shall currently give a benefaction and, a analogous past supplies of a Code in a following list so that one can simply know a position of law that stood progressing and a benefaction position concomitant on a amendment done in a benefaction Code.

On a plain reading of Section 488 (8) of a aged Code, it can be seen that a place where a mother resided after abandonment by her father was not material. This caused good hardship to wives. who after abandonment were vital distant divided from a place where they and their husbands final resided together. So, in sequence to mislay such hardships, on a recommendation done by a Law Commission, a benefaction Section 126 (1) (b) was enacted by introducing a countenance ‘or his wife’ between a difference ‘he’ and, ‘resides’, so that a venue of a record should also embody a place where a forlorn or neglected mother might be staying on a date of a application. In a benefaction revision, a essential word ‘resides’ occurring in Section 126 (1) (b) alone comes adult for interpretation. Under a aged Code, a Magistrate of a district where a father or father, as a box might be, resided, customarily had a jurisdiction. Now a office is lengthened or widened. 5. 126 (1) gives 3 choice forums as enumerated, in Clauses (a) to (c) there under. These choice forums are resolutely given by a Parliament so as to capacitate a rejected mother or infirm child to get a much-needed and, obligatory service in one or a other of a 3 forums that is available to them. Needless to contend that a pierce underneath Section 125 is in a inlet of a polite pierce and a pill is a outline one, as laid down in Sub-section (2) of Section 126, and a chairman seeking a remedy, as forked out above, is customarily a infirm person. The introduction of a countenance in Section 126 (1) (b) is ‘or his wife.’

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..5. So, a word ‘resides’ should be positively liberally construed, nonetheless during a same time, nonetheless doing any assault to a denunciation and nonetheless defeating a unequivocally vigilant of this provision.

..6. The word ‘resides’ has been theme to opposing authorised opinions. In a Oxford Dictionary it is tangible as ‘….to live henceforth or for a substantial time, to have one’s staid or common abode, to live, in or during a sold place.’

..7. The Corpus Juris Secundum, Vol. LXXVII during page 285 states that a word ‘reside’ is employed in a far-reaching accumulation of significations, that a definition might differ according to a tie in that it is used, that a sold interpretation of a tenure in any given instance depends on a context and a purpose underneath care and that it should be interpreted in a light of a vigilant or purpose of a use. It is. serve remarkable therein as follows:– It has been pronounced that a word, ‘reside’ has dual graphic meanings, and that it might be employed in dual senses, and in what is infrequently referred to as a despotic legal, or technical sense, it means authorised home as. renowned from small chateau or. place of tangible abode. In this clarity a word ‘reside’ means authorised residence; authorised domicile, or a home of a chairman in speculation of law, a place where a chairman is deemed in law to live, that might not always be a place of his tangible home and so a tenure might meant something opposite from, being corporeal present, and does not indispensably impute to a place of tangible abode. When employed in this sense, a word,’reside’,.includes not customarily earthy participation in a place, nonetheless also a concomitant vigilant of selecting that place as a permanent residence.

..8. Again, during page 288, it is remarkable thus: Reside’ has been reason homogeneous to, or synonymous with, ‘abide’, ‘dwell; ‘to have one’s home’, ‘live’, ‘lodge?, ‘remain’, ‘residence’, ‘sojourn’, and ‘stay’ ‘Reside’ is pronounced to be. customarily classed as synonymous, with ‘inhabit’; nonetheless not., in strictness, scrupulously so.

..9. In a Words and Phrases, Per manent Edn. Volume 37, during page 308 it is tangible thus; To ‘reside’ in typical acceptation, means to dwell, or to live…’Reside’ means live, dwell, abide, sojurn, stay, remain, lodge.

..10. The above lexicographical definition of a word, therefore, takes in both a permanent home and a tern porary vital in a place and it is therefore means of opposite meanings including ‘domicile’ in a strictest and a many technical clarity and a proxy chateau in a magnanimous sense. Whatever definition is given to it, one thing is apparent and it is that it does not embody a infrequent stay in or a drifting revisit to a sold place. In short, a definition of a word would in a ultimate research count on a context and a purpose of a sold statute..

..11. In this case, a context and a purpose of a benefaction government positively do not enforce a importation of a judgment of home in a technical sense. The purpose of a government would, be improved served if a word ‘resides’ is accepted to embody proxy residence. For example, if a chairman goes from his permanent place ‘A’ to another place ‘B’ possibly for carrying out certain work or as an invitee or as a traveller and resides or stays there for one or dual days, he can't be pronounced to be staying during ‘B’ in a authorised sense. But it he goes to a place ‘B’ and stay there for some length of time, nonetheless not permanently, nonetheless for a purpose of possibly educating his children or carrying on a business for a substantial length of time, he resides during ‘B’. One can't give downright illustrations to explain what a tenure ‘resides’ means. j But, a definition has to count on a resources of any case. The categorical criteria in last what a tenure ‘reside’ means, is a goal or a animus manendi of a chairman staying in a sold place, and the, related countenance includes both proxy and permanent residence. But, a countenance ‘resides’ used in Section 126 (b) of a new Code will not embody a infrequent or drifting revisit or a brief, stay. On a other, hand, it implies some-more than that..

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..12. Mr. V. Gopinathan drew a courtesy of this Court to decisions of a several High Courts and eventually to a preference of a Supreme Court, all defining a tenure ‘reside’.

..13. The Full Bench of the. Allahabad High Court, in Arthur Flowers v. Minnie Flowers (1910) ILR 32 All 203, has held, while interpreting a countenance ‘resides’ occurring in Section 3 of a Indian Divorce Act, that a small proxy tarry in a place, there being no goal of remaining there, will not volume to chateau in.that place within a definition of. a expression, so as to give office under, a Act to a Court within a internal boundary of whose office such a place is situate.

..14. In Charan Das v. Surasti Bai AIR 1940 Lah 449 : 1941-42 Cri LJ 105, it was reason that a solitary exam on a doubt of chateau was possibly a celebration had a animus manendi or an goal to stay for a definite,period during one place and if he had such an intention, afterwards alone could he be pronounced to reside there.

..15. In Balakrishna v. Mrs. B. Sakun-lala Bai AIR 194-2 Mad 666 : 194-2 Mad WN Cri 73, it has been pointed, out that a word ‘resides in Section 488 (8) Cr. P.- C. implies a small goal to rer maJn ata place and not merely to compensate it a infrequent revisit intending shortly, to pierce on to ones permanent residence.

..16. This Court has in Sampoornam v. N. Sundaresan , obseryed as follows during p, 275 of Cri LJ:– In short, Sub-section (8)of Section 488 Cr. P.C. does not indispensably impute to a permanent chateau and it refers also to proxy residence, and a word ‘residence’ implies something some-more than a brief revisit nonetheless not such a smoothness as to volume to domicile. Each case, has to be dealt with on a merits as has been forked out in Ganga Bai v. Pamanmal AIR 1938 Sind 223 1939-40 : Cri: LJ 117, temperament in mind that a territory should not be so particularly cont, strued as to dispossess a woman, who mostly in these cases is helpless, of assistance from a Court/which is many simply permitted to her. The Supreme Court in Jagir Kaur v. Jaswant Singh , after carrying referred to a definition of a tenure ‘resides’ as tangible lexicographically and as inter-: preted by a several High Courts, has celebrated as follows (at p. 415 of Cri LJ):- The decisions on the. theme are multitude and it would be fatuous to consult a whole field. Generally staid no preference goes so distant as to reason that ‘resides’ in a sub-section means only’ home in a technical clarity of that word. There is also a extended concord that it means something some-more than a (lying revisit to or a infrequent stay in a sold place. They determine that there shall be animus manendi or an goal to stay for a period, a length of a duration depending on a resources of any case. Having courtesy to a vigilant sought to be achieved, a definition substantial in a difference used; and a construction placed by motionless cases thereon, we would conclude a word ‘resides’ thus. :,a chairman resides in a place if, he by choice creates it his headquarters henceforth or even temporarily,; possibly a chairman has selected to make: a sold place his headquarters depends on a facts,of any case.

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..17. Therefore, it is transparent that a exprecession ‘resides’ occurring in Section 126(1) (b) has to be given a magnanimous interpret ion and a legislature could not have dictated to use a pronounced tenure in a technical clarity of ‘domicile’ and it ‘has to be Understood to embody a proxy chateau also.

..18. Now, let us inspect a contribution of a benefaction case, giving a word ‘resides’ a magnanimous interpretation as forked put in the., above decisions.

..19. Mr. Gopinathan drew a courtesy of this Court to Exs. R. 1 toR 5,marked in this box and contended that a postulant herein has unambiguously valid that a respondent is staying in Ambattur. In Ex. R-l, a postal acknowledgment containing a signature of a respondent antiquated 20-7-1979, her chateau read,s so : “Mrs. K. Bala Kanaka Lakshmi, Laxmi Nivasl, No. 5, Kanniah Chetti St. Venkatapurarn, Ambattur P. O., Madras-53”. Ex. R. 2 is a respond notice antiquated 15-10-1979, sent by a respondent herself to a petitioner’s Counsel. In that respond notice also, she has given a same chateau as in Ex. R. 1. Ex. R. 5 is nonetheless another postal acknowledgment antiquated 9-8-1980, containing a signature of a respondent and therein also a respondent’s chateau is a same as in Ex. R. I-Thus, it is transparent that all a association and a communications addressed to a respondent during her chateau during Ambattur, Madras 53, were duly served on her. Above -all, she -herself has given her chateau in Oct 1979′.in Ex. R. 2, saying that she is staying during No. 2 Kanniah Chetti St. Venkatapuram, Ambattur, Madras 53.

..20. As opposite a above, documentary evidence, a Court next was prone to bottom a end holding that a respondent is staying during Madras, usually on a uncover done in a rough of a petition filed underneath Section 125 Cr. P.C. that reads thus: The petitioner/complainant Balakanaka Lakshmi, aged about 23 years, staying during Madras, gravely attest and state as follows. Barring this, there is zero on record to uncover that a respondent is staying within a territorial office of a Court next or during any rate in any partial of a Madras Corporation limits. The respondent would be conspicuously wordless about a tangible place of her chateau in her affidavit. Only if a respondent gives her- residential address, a postulant would be means to rebut it by producing justification to a contrary. Her bald, and deceptive matter that she is staying during Madras, will not capacitate a Court to arrive during any transparent end that she is staying within a territorial office of a Court. If unequivocally a respondent is staying in any partial of a Madras City, she should have privately given a doorway series and a names of a travel and of a locality, so that a Court next could certainly take seisin, of a matter. On a other hand, she has not denied a matter in a opposite that she is staying during Ambattur, Madras 53 (Madras 53 denotes a postal division). Ex. R. 5 antiquated 9-8-1980, reveals that a association addres sed to her has been served on her during her Ambattur address, even after her petition for upkeep dated, 20-2-1980 has been filed before a Court below, and a respondent herself has given her Ambattur chateau in Ex. R-2 Moreover, it might be remarkable that a notice released from this Court in this rider sent to a respondent by a II Metropolitan Magistrate, Egmore, Madras, has been served on a respondent customarily during her chateau during Ambattur mentioned above. Therefore, we unhesitatingly reason that a respondent is even now staying customarily during Ambattur. For all a reasons staid above, we reason that a respondent is not staying within a territorial office of a Court below, possibly temporarily or permanently, nonetheless she is valid to be ‘residing’ within a definition of a pronounced countenance used in that area a Court within a Chingalpattu district alone will have a territorial. jurisdiction’.

..21. In a result, the.revision is allowed, a sequence inspected by a II Metropolitan Magistrate is set aside and a conflict lifted by a postulant with courtesy to a territorial office is upheld. It is left to a respondent to benefaction a petition before a suitable and efficient Court carrying office over Ambattur.

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